Kennett Square, PA asked in Criminal Law for Florida

Q: When a person is deemed incompetent through a judge, does that mean that they have to let them go ROR if currently incar

My son is in jail for violation of an injunction for the second time, however there is a motion to dismiss the injunction. Also he had a compentency test and it stated he was unable to stand trial or enter a plea

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Jeremy Lasnetski
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  • Criminal Law Lawyer
  • Jacksonville, FL
  • Licensed in Florida

A: A judge does not have to, and often won't, release a person who has been found incompetent to stand trial. Typically, that person will be sent to a hospital to be treated. This is called involuntary commitment and is authorized under Florida Statute 916.13, which lists the factors required for involuntary commitment. Once the person regains competency, they will typically be transported back to stand trial. Competency should not be confused with insanity. Competency relates to a person's ability to understand the process. For example, do they understand what they are charged with, what the judge's role is, what the prosecutor's role is, what the defense attorney's role is. If the person can't understand the process, they can't be tried. Insanity is an affirmative defense that relates to whether the person knew what he or she was doing at the time of the offense, knew that it was wrong or understood the consequences based on a mental infirmity, disease or defect. Whether a person is found incompetent or insane, they can still be held in custody under statutes that relate to incompetency or insanity.

Terrence H Thorgaard agrees with this answer

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